Hargis v. The Kansas City, Clinton & Springfield Railway Company Co.
| Citation | 13 S.W. 680,100 Mo. 210 |
| Parties | Hargis v. The Kansas City, Clinton & Springfield Railway Company, Appellant |
| Decision Date | 22 March 1890 |
| Court | United States State Supreme Court of Missouri |
Appeal from Cass Circuit Court. -- Hon. C. W. Sloan, Judge.
Reversed.
Wallace Pratt and I. P. Dana for appellant.
(1) Defendant's predecessor entered upon the land in question and constructed its railroad there with permission and under a grant of right of way from G. W. Browning, the then owner and it and its successors, including defendant, have ever since maintained and operated said railroad. Therefore neither said Browning nor any of his successors in estate could maintain ejectment of said land. Sedgwick and Wait on Trial of Title to Land [2 Ed.] secs. 834, 676; Pryzbylowicz v. Railroad, 3 McCrary, 586; McAuley v. Railroad, 33 Vt. 311; Provolt v Railroad, 57 Mo. 261; Baker v. Railroad, 57 Mo 265; Gray v. Railroad, 81 Mo. 134; Bradley v. Railroad, 91 Mo. 499. (2) And, although the grant was by parol, yet, as the railroad company entered under it and expended labor and money on the strength of it, the statute of frauds does not affect the grant, and both the grantor and his successors in estate are estopped from questioning or repudiating it. House v. Montgomery, 19 Mo.App. 175; Chiles v. Wallace, 83 Mo. 93. (3) Plaintiff took the land subject to a grant for a railroad, made by his predecessor, Browning, and with actual knowledge of its occupation by the railroad company. He was therefore estopped from suing for its recovery. See cases cited last above. Also Sedgwick & Wait, supra, sec. 723a and cases there cited; Connor v. Goodman, 104 Ill. 366; Vaughn v. Tracy, 22 Mo. 415; Meier v. Blume, 80 Mo. 179; Mason v. Black, 87 Mo. 341-2; Woods v. Farmere, 7 Watts. (Pa.) 382. (4) And such knowledge made it his duty to inquire and ascertain the nature and extent of the railroad company's claim. Failing to do so the law treats him precisely as though he had inquired and had learned all that might have been ascertained upon inquiry. Hughes v. U.S. 4 Wall. 232; Shumate v. Reavis, 49 Mo. 336; Fellows v. Wise, 55 Mo. 413; Reilley v. Railroad, 94 Mo. 608; Wade on Notice, secs. 275, 280. (5) Further, the nature of the corporation occupying the land in controversy, and the extent of its power under the laws of the state to take and hold real estate, and the use made by it of the land were matters of general knowledge, and the plaintiff was bound, as the courts are, to take notice of them. These facts were conclusive on plaintiff as well as on defendant, as to the extent and character of the latter's claim. R. S. Mo. 1879, sec. 765; Railroad v. Rayl, 3 A. & E. R. R. Cases, 182; Day v. Railroad, 20 A. & E. R. R. Cases, 364; Railroad v. Cochran, 3 Lea (Tenn.) 478; Prather v. Tel. Co., 14 A. & E. R. R. Cases, 1; s. c., 89 Ind. 501; Campbell v. Railroad, 9 West. Rep. 371; s. c., 110 Ind. 490. (4) (a) Defendant's predecessor entered upon the land in controversy, claiming a strip of land one hundred feet wide, with the knowledge and consent of Browning, the then owner of the land, and under a grant from him; the entry was under color of title and said company and its successors continued for more than ten years thereafter in actual, open, notorious, exclusive and continuous possession of a part of said land, claiming the whole, and exercising, during such possession, the usual acts of ownership over it. No matter what questions may be raised as to the sufficiency of the grant, such entry and occupation gave a good title to the whole to defendant and its predecessors by virtue of adverse possession under the statute of limitations of this state. No written instrument was necessary to create color of title. R. S. of Mo. 1879, secs. 3219 and 3223; Rannels v. Rannels, 52 Mo. 108; Mylar v. Hughes, 60 Mo. 110; Cooper v. Ord, 60 Mo. 431; Hughes v. Israel, 73 Mo. 538, 547; Powell v. Davis, 54 Mo. 318; Cunningham v. Snow, 82 Mo. 592; Bank v. Fife, 95 Mo. 126; McCall v. Neely, 3 Watts. (Pa.) 72. (b) And this is equally as true if the grant be considered an easement. House v. Montgomery, 19 Mo.App. 170, 175, 182; Welsh v. Railroad, 19 Mo.App. 133; State v. Wells, 70 Mo. 637. (c) And the defense of adverse possession for the statutory period is permissible under the general denial in defendant's answer. Hill v. Bailey, 8 Mo.App. 85; s. c., 76 Mo. 454; Nelson v. Brodhack, 44 Mo. 596; Campbell v. Gas Co., 84 Mo. 368; Fulkerson v. Mitchell, 82 Mo. 20, 21. (d) The evidence showed the defendant to be the legal successor of the company which made the original entry, so that there was privity between the successive occupants, and privity in possession applies to constructive possession under color of title, as well as to actual possession. Menkins v. Blumenthal, 27 Mo. 203; Crispin v. Hannavan, 50 Mo. 549. (e) And such possession vested a good title in defendant. Ekey v. Inge, 87 Mo. 495; Crispin v. Hannavan, supra. (f) The nature of the entry, the purposes for which the land was given and used, the power of the grantee to take and hold it -- all are important and should be considered in determining the extent and character of the occupant's claim, and in the case at bar would be conclusive on those points, even if the original entry had not been with color of title defining the extent of defendant's claim. R. S. Mo. 1879, sec. 765; Railroad v. Cochran, 3 Lea (Tenn.) 478; Railroad v. Rayl, 3 A. & E. R. R. Cases, 182.
Boggess & Moore for respondent.
(1) It is nowhere asserted or pretended in the record, save the petition only, that any one ever supposed that Browning, or any one claiming under him, could eject the respondent from the possession of its roadbed. This is sufficient response to appellant's second point, division a. It is perhaps enough also as to division b. But will say that appellant's right, however large or small, rests not in grant, but upon mere license, executed by the expenditure of large sums of money and great labor, from which estoppel arises. So it will be seen respondent does not seek to revoke or otherwise affect the license, only to limit appellant's rights thereunder. This we deem sufficient response to the appellant's third propositions. (2) As to respondent's third proposition, division c, the conclusion drawn from the premises is a non sequitur. It is there predicated that because the company had the right to take, therefore, it did take a given quantity of land, whereas it did not take anything under its right so to do under the statute. It did not in any sense exercise or seek to exercise the right of eminent domain. It entered under a license, and occupied thereunder a strip twenty-five feet wide. It was under no duty or obligation to and did not occupy more. As a correlative it cannot claim more. Its rights and duties were co-existent and necessarily co-extensive, and whatever it had a right to claim it was bound to occupy so far as affects third persons; and as a corollary of this proposition what it did not occupy, under the license, it cannot claim. Hence no person was bound by the extent or boundary of any claim outside of and beyond the actual occupancy. The company's rights under the statutes were defined by General Statutes, 1865, page 332, section 2, as follows: "* * * To lay out its road not exceeding one hundred feet in width, and to construct the same; and, for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road. * * *" The method of taking and appropriating such land is provided by section 1 (et seq.), General Statutes, 351. The record fails to disclose any attempt to exercise such statutory right. (3) To our minds appellant's fourth proposition, division a, does not merit serious consideration; however, as it is substantially reproduced in subdivision f of the same proposition, we shall give some attention to them both in our next paragraph, which we hope to make cover the whole ground. When that is done we shall be content without discussing any other of the numerous points in the brief of the learned attorneys for appellant. (4) On and ever since the day that Browning gave the right of way, as it is called, he, and those claiming under him, have had the legal title to all said land, subject to the license given by him to the railroad company, which never has had title, they held successively, in fact, and constructively the possession of all thereof, except what the railroad company had in its actual possession -- pedis possessio -- its roadbed. Griffith v. Schwenderman, 27 Mo. 412; Schultz v. Lindell, 30 Mo. 310; Bradley v. West, 60 Mo. 33. (5) Complaint is made in the assignment of errors of the action of the court below, in giving and refusing instructions as asked by the appellant. Such alleged errors are not, however, discussed in the brief. We are, therefore, at a loss to determine if said assignment is serious or merely perfunctory. We only have this to say at present as to the instructions. A stranger medley of writing called instructions has perhaps never been presented for our consideration. We shall not undertake to discuss them now. If we find the gentlemen on the other side are serious about the matter, we can attend to it at the oral argument. There is in these instructions, as asked by the appellant, a worse confusion of ideas and legal phraseology than there was of languages at the Tower of Babel.
-- This is an action of ejectment in common form, brought in March 1886, in the circuit court of Cass county. On its face the petition seeks to recover the described quarter section, but the answer of defendant disclaims all interest therein, except as to the strip or right of way of one hundred feet in width. As to this strip or right of way, defendant sets up...
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